Could a Chinese constitution limit the CCP’s powers?

22 August 2013

Author: Brendan Forde, ANU

The role and implementation of the state Constitution is becoming an increasingly important issue in political debates in China, as scholars and citizens alike consider possible future directions for change and reform.

But throughout the PRC’s history the Constitution in its various iterations has been perceived and treated more as a set of broad guidelines, with the enforceability of specific provisions subject to the political circumstances of the day.

The current Constitution was promulgated in 1982. It contains protections for freedom of speech, the press, assembly, association and demonstration, along with the right to vote and be elected to office. An amendment introduced in 2004 commits to the protection of human rights. The document contains a provision that asserts that the Constitution is supreme over all organisations and individuals within the PRC.

The legislature, the National People’s Congress, has the power to interpret and enforce the Constitution, as well as review laws for their constitutionality — all this while the courts have no power of judicial review. The leadership of the CCP enjoys a prominent role in the Constitution.

It is in the ambiguity that exists between enumerated rights and reality that an arena for the debate of political reform has opened. While debates over the Constitution are hardly new in China the current discussions come at an interesting time, in the midst of anti-corruption and political rectification campaigns pushed by the new leadership.

In essence, the debate is relatively straight forward. One side is broadly made up of reformers or constitutionalists, ranging from those who seek better implementation of the existing Constitution to those who pursue the promulgation of a new one. As leading reformer Zhang Qianfan put it: ‘Constitutionalism means nothing but the implementation of the Constitution’.

The other side is made up of those opposed to any greater role for the Constitution in China. They have deployed a range of arguments in defence of the status quo. A recent article by Ma Zhongcheng in the overseas edition of the People’s Daily argued that constitutionalism was supported by hostile foreign forces to undermine the CCP, citing the contribution of similar reforms to the Soviet Union’s fall (a common theme used by conservatives in China to argue against reform). And a Global Times editorial in May argued that constitutionalist reforms are incompatible with China’s development path.

Constitutionalists have responded, with one noted essay in the Central Party School’s Study Times by Party historian Li Haiqing calling for the introduction of constitutional concepts of citizenship to replace the political notion of the masses. Beyond intellectuals with official party sanction, the apparent reluctance of some media outlets to openly editorialise in favour of constitutionalism can be traced to January this year when an editorial in the Southern Weekend espousing the need for the implementation of the Constitution was replaced by propaganda officials.

Such an editorial intrusion might suggest that the authorities are not willing to tolerate any change. This has been reinforced by the existence of an elusive and yet-unpublished central government circular known as Document 9 that warns against hostile foreign forces using ideology to divide China.

Despite this, Xi Jinping’s comments on the Constitution may indicate a different viewpoint. In December, at an event marking the Constitution’s 30th anniversary, Xi referred to the Constitution as the ‘legal weapon for the people to defend their rights’ and commented that the ‘vitality of the constitution lies in its implementation; the authority of the constitution lies in its implementation’. Addressing the Second Plenum of the 18th Central Committee in February this year Xi stated that ‘no organization or individual should be put above the Constitution or the law’, echoing his statements in December. These comments are quite clear, but they should not be taken as conclusive proof of Xi’s attitude. Indeed, the incident at the Southern Weekend occurred after Xi’s December speech.

So far, constitutional advocates have broadly survived without censure. The public debate continues, even though the conservative position enjoys disproportionate prominence in the media. However, there are shifting boundaries of acceptability that advocates will need to be wary of. An advocacy group called the Open Constitution Initiative formed in 2002 to push for greater constitutional implementation was forcibly closed in 2009. A key player in that initiative, activist lawyer Xu Zhiyong, has been detained, probably in relation to his leadership of the New Citizenship Movement, which calls for the enforcement of constitutional protections for citizens. The detention of Xu serves as a boundary marker: once the debate moves from intellectual exchange into the realms of activism the authorities will be quick to act.

It is difficult, if not impossible, to determine what influence these debates over the Constitution have had at the highest levels of power. But it is likely that most leaders would naturally prefer the greater flexibility in the exercise of power that comes from the present status quo. Regardless, the issue of constitutional implementation will not disappear — more and more citizens are aware of their enumerated rights and seek to use them. Protestors increasingly invoke these rights to legitimate and protect their actions. At stake is the rule of law itself and the faith of citizens in the Chinese political system. This is an important debate at an important time in China’s political development.

Brendan Forde is a PhD candidate at the Australian National University specialising in Chinese Politics.